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Custodial sentences
A custodial sentence is a sentence of imprisonment or detention of an adult offender.
The term custodial sentence includes a deferred sentence of imprisonment at the end of criminal proceedings in Scotland. This is also known as a suspended sentence in the rest of the UK.
A deferred sentence is when the individual is not in prison but can be sent to prison if they commit another offence during a period of time determined by a judge. This is normally between 3 to 12 months.
Individuals who are given a deferred sentence are still entitled to be paid Scottish Adult DLA unless they enter legal detention during this time. If this happens, they will no longer be paid Scottish Adult DLA after they spend 28 days in legal detention.
Example: an individual commits an offence during a deferred sentence and enters legal detention
Gerry is entitled to Scottish Adult DLA care component. A judge rules during legal proceedings that Gerry should be given a deferred sentence of 9 months. Gerry should still be paid Scottish Adult DLA during this time because he is not in legal detention.
Gerry commits a second offence 3 months later and is taken into legal detention. Gerry’s payment of Scottish Adult DLA should stop after 28 days in legal detention.
When a sentence has been imposed, a higher court can later either:
- quash or cancel the conviction
- substitute the sentence with an order such as a community pay back order or a fine.
Payment of Scottish Adult DLA should begin again once the individual is released from legal detention, so long as they still meet the eligibility criteria.
An individual cannot receive backdated payment of Scottish Adult DLA for the time they were in legal detention